Shaun Newman Podcast - #904 - Barry Kirkham

Episode Date: September 1, 2025

Barry Kirkham is a prominent Vancouver-based lawyer with over 50 years of experience in civil litigation, specializing in alternative dispute resolution, insurance litigation, and corporate commercial disputes. We discuss the landmark B.C. Supreme Court decision Cowichan Tribes v. Canada which centers on the recognition of Aboriginal title to a 780-acre tract of land known as Tl’uqtinus, located on Lulu Island in Richmond, British Columbia, along the south arm of the Fraser River.To watch the Full Cornerstone Forum: https://open.substack.com/pub/shaunnewmanpodcastGet your voice heard: Text Shaun 587-217-8500Silver Gold Bull Links:Website: https://silvergoldbull.ca/Email: [e-mail] Grahame: [phone]Bow Valley Credit UnionBitcoin: www.bowvalleycu.com/en/personal/investing-wealth/bitcoin-gatewayEmail: [e-mail] Use the code “SNP” on all ordersProphet River Links:Website: store.prophetriver.com/Email: [e-mail] Money SummitWebsite: ExpatMoneySummit.com

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plywood here in town tell them i sent you if you're uh interested in the uh new studio reach out to me you can uh do lots of different things of course uh but to get on the legacy wall um you know we just had a uh a wood cutting i don't know shindig workby i don't know throw your word in there and uh of course just by uh guys lending their their sweat edict uh put their sweat equity into it we're gonna have some names going up on the on the wall for that. But there's other ways if you're on the other side of Canada, by all means. But shoot me in text.

We'd love to have you get your name on that wall. If you haven't signed up for a substack, you can see some of the work we just did on the week in review. Every Sunday, the week in review, now back coming out, get you caught up on all the podcasts, all that good stuff. All right, let's get on to that tale of the tape. Today's guest has 50 years of experience in civil litigation, specializing an alternative dispute resolution, insurance litigation, and corporate commercial disputes. I'm talking about Barry Kirkham.

So buckle up. Here we go. Welcome to the Sean Newman podcast today. I'm joined by Barry Kirkham. Thank you, sir, for hopping on. My pleasure. Now, first time on the show, you know, with a first time guest, I always want to, you know, allow myself in the audience to know, who they're listening to.

So maybe just, Barry, tell us a bit about yourself and, and yeah, just fill us in. Okay, I practiced law for five decades as a trial lawyer, mostly in British Columbia, started out in Alberta, but ended up here in 1971.

Did major commercial litigation. I retired in 2019. My whole life had an abiding interest in Canadian history and I've also kept up to date on the legal decisions that pertain to what's happening, especially in British Columbia. In five decades, just on your career, how much has it changed in, like how much change have you seen in Canada in those five decades? I assume quite a bit.

You mean in the courts, apart the case of concern? Well, it's the same old system. You know, you've got plaintiffs and defendants and you have. to prove your case and put in witnesses and cross-examination and documents and all that. So I don't think anything has changed in the fundamental way that the courts operate. It's the laws that have changed because of judicial decisions, and especially on Aboriginal title, which is what we're going to talk about today. Well, let's get into the Cowherton Tribe decision in BC back on August 7th. Can you, like, spend as much time as you want telling where.

this started how it got to where it is what it means i'll probably ask a bunch of dumb questions along the way but um i guess just walk me through it if you wouldn't mind sure um it's a complicated story and so if i'm getting too complex or missing things don't hesitate to interrupt and sure questions um just to deal with the college in the specific college and decision the The Cowichin band sued Canada, BC, and Richmond. And the Muscoon got added in because they opposed the claim as well, the Muscoon Band from Vancouver. So there was four main defendants.

The Cowichin Band claimed that a section of Richmond of about three square miles that bordered on the Fraser River, but contains major business. businesses and a lot of, in a subdivision with expensive houses, was subject to Aboriginal title. And they succeeded and now have a declaration that their Aboriginal title trumps all the other titles that exist, including the homeowners. Now, it's complex because they didn't sue the homeowners directly, but the result of the

case is that they have Aboriginal title over the fee simple titles loan by the homeowners. And it's really brought home what's the law has been, how the law has been developing in this province since the Delmagoop decision in 1995. This is essentially the logic extension of that decision. So that's what happened in Richmond. And I'll come back to some of the details of that particular case because they're really quite fantastic. And we have a fishing village that they used to periodically back 10080s. back 180 years ago and left the site within a decade of that and hadn't been back since and now they have Aboriginal title to it. It's really mind-blocking. So in terms of Aboriginal

title, most of Canada's from Ontario to Alberta, just about all, I think all of it, involves treaties that were signed with the various Indian bands. in which any land that they owned was ceded to the Canada and then to the provinces. We hear a lot about land acknowledgements. Those land acknowledgments are preposterous when it comes to Ontario, Alberta, B.C. and Saskatchewan because the land was clearly seated. There's no issue about that. Land acknowledgments always go on about how they're holding events on unseated land. That's just not true.

However, in respect to British Columbia, James Douglas, who was governor after the colony was established in 1850, did sign a few treaties with various Indian bands, but most of the province was never subject to treaties and isn't to this day. There's some that have been negotiated recently. In respect to those areas where there's been no treaties and therefore the land has not been seated, that's where the Supreme Court of Canada in a decision called Delmagooke in 1995 changed the world, the court decided for the first time that if there was land in Malaysia,

Columbia that wasn't seated, basically 85% or 90% of British Columbia, it could be, it could be subject to an Aboriginal rights claim. The claim would have to be proven in particular cases, but Aboriginal title could exist if, and the court just made this out, if the Indian man could prove that it had exclusive occupation of the site when, the crown first declared sovereignty over the area. Now that's deemed to be 1846 when the British crown entered into a treaty with the United States in respect called the Oregon Treaty where the crown declared sovereignty over British Columbia. So that's the key date.

If an Indian band under this made up doctrine under Delmabuk in the Supreme Court, If an Indian band can prove that it occupied a given area in 1846, it has a claim to have Aboriginal title to that area, and Aboriginal title trumps everything, including feasible titles. So that's the, that's what happened in Delano. Now, for a long time, it was thought that this would simply apply to their individual villages where they lived. That was put to rest in a case called Dish Kooten 20 years later where again the Supreme Court of Canada said no, Aboriginal title applies not just to their villages, but to any area which they can show they asserted in essence exclusive occupation of through hunting fishing or whatever so in those cases that have

gone to court and there's been four of them now the the issue is can the indian band show that it had exclusive occupation back in 1846 so that's the essence of what abridgen title is all about and it only applies to BC. There's problems also in those areas which don't have treaties, which is some parts of Quebec and the Maritimes. I'm not an expert on those, but I know that right now in New Brunswick, there's a case brought by what are more Indian bans against the province in which the Indians are seeking a declaration of title over more than half of New Brunswick, Declaration of Aboriginal Title over more than half of New Brunswick. But you don't have this problem in Saskatchewan or Alberta.

So that's the broad view, Sean. Now what I can do now is go through some of the details of what happens in these Aboriginal title cases. If I may, just I'm trying to keep up here. Exclusive occupation. So they have to show that. And they have to prove it from 1846. You have to prove it as of 1846. Yes.

So that's like 180 years ago. Yes. Okay. Just so I'm doing my math correct here. Right. And I just quickly Googled exclusive occupation because I'm like, okay, what does that actually mean? And what I pulled up is it refers to the sole use and control of a property or space by an individual or entity without interference or shared access by others. Yes.

So how on earth do you go back almost 200 years and prove that? Well, that's a very perspicacious question. And it really, it's just what about to address is how do they go about proven? Yeah, right. Well, there was hardly any white people in British Columbia back in those days. The Hudson Bay Company had been around for a long time, and they had their posts. But there wasn't many settlers. There's very few records that are available to prove where Indians lived in those days or where they hunted or fished.

The Indians had no written languages, so they created no documents. And to the extent that there are records made by the Hudson's Bay Company or the odd government official, those of course are some evidence. But in many cases, what they're driven to is to rely on oral evidence that's seventh generation hearsay. Now, this is so fantastic and contrary to the whole history of the common law, I've got to explain this. If you go to court today, and this has been the case throughout the history of the common law, hearsay evidence is not admissible. You're not permitted to say what someone said to you and have what someone said to you constitute evidence in the case. It's hearsay and it's inadmissible. And there's some well-defined exceptions.

But that's the general rule that applies in all other cases. In Delmogook in 1995, the Supreme Court of Canada made up the notion that hearsay evidence would be admissible to prove where Indian bans had occupation back in 1846 because there was no other way they could prove their case. That was the rationale. So we have a doctrine where seventh generation hearsay is admissible and accepted by the courts to prove precisely the areas that the Indian bans occupied in 1846. I mean, to me it's on an absolute preposterous basis. But yet that's the law of Canada.

In this particular case, the Richmond case, the three acre, three square miles approximately in Richmond, they showed. And I think the evidence supports the finding that they had a fishing village, the coach had a fishing village that they occupied only in the summer. Their main occupation was on Vancouver Island, and then they would come over and fish in the summer. And the court found that that constituted a sufficient occupation to ground the claim for aboriginal title. They left the area after that, about 1870. the area started to be granted in fee simple a title to newcomers that were coming in the government of bc the colony of bc up to 1971 and then after that they joined canada and became a province and the province of bc from that on was in the habit of issuing fee simple titles to these areas until the entire area was

was either seated to individuals or businesses or to the municipality of Richmond once it got incorporated for things like highways. And the titles have been sold and resold over the years. And the current owners bought them thinking that they were buying a title just like anybody else. And now they're told that they, well, they've still technically got their fee simple title

registering the land registry because the Indians in this case did not sue the individual title so there's no declaration invalidating their title per se but the court clearly held that aboriginal title is paramount and left it to the province to negotiate with the Indians to see if they can do something about these aboriginal titles but a push comes to shove sorry about these individual titles but a push comes to shove these rich people will lose their titles and be thrown out without compensation from the Indians, although they may have a claim against the government. But that's problematic because it goes back to the time that these titles first traded in 1870 and they may not have a direct claim for compensation against the government.

So it's a pretty awful situation. I heard you correct by you saying moral evidence. right moral sorry it's oral oral oral oral in other words

an Indian takes the stand and he testifies that his grandfather told him that his grandfather told him where the band

had occupied territory back in 1846 so it's it's been passed down from father to father to father all the way along the period, 107 years, and someone is now tested.

I mean, the original evidence is what happened in 1846, or what was the situation in 1846, and the courts admit evidence where someone today is prepared to testify as to what the situation was in 1846 by recalling that they heard this from their father, who heard up their father who heard it from their father going all the way back to someone that was actually there in 1846. That's the sort of evidence that our courts had accepted, had rely on, and it's completely unprecedented. And it's, I mean, let me, I made one note I wanted to share with you from this judgment. The judge says, I can't find my note, but the judge in one passage talked about how were very diligent about passing on their history,

and they would, for instance, talk about it when they were picking barracks together at a field. I mean, this is the sort of preposterous nonsense that goes on. So she says that oral evidence is a seventh generation hearsay, is completely reliable because it's passed on with such diligence. that everybody can know it today

and can give evidence as the way it was in 1846, even though no records were made because they didn't have a spoken, a written language. That's the way they proved the case. In your five decades of practicing law, was there ever a time where oral evidence was allowed, or I don't know the proper terminology for it, but like in a court case, was there, you know,

was oral evidence, is there a different spot in Canada where that was something or maybe a different time in the world where oral evidence was a thing? Like, have you ever... We're off a base a bit. I think I caused this. Oral evidence is somebody testifying. And that's what we have all the time. Oral means speaking.

Sorry, but oral evidence going back. It's hearsay. It's the hearsay aspect of oral evidence. Anybody can testify. I did this. But no one can testify. I was told by my father, who is. told by his father who was told by his father etc yes sorry and we occupied that territory in 1846

no there's no other example of this in the history of the common law so like um that's it sorry and and i i agree with what uh what you just said and i guess i'm i'm uh hearsay would be the word i guess i was referencing just that the tradition like an oral tradition isn't new to the world right There's plenty of different cultures that have an oral tradition of passing down lessons and, I don't know, stories and on and on. Like that's in different cultures. That makes sense to me. But in the court of law, I can't walk in and go, well, great, great grandfather Newman used to say and that be accepted. Correct.

You could not do that. So this sets precedent for. originals then that they can do that correct exactly that's what these cases are based on that sort of evidence okay so when we stick to bc just for the time and this this um case right they now supersede people's property rights correct they can if they prove that they occupied it sufficiently in 1846, the definition that you cited before, if they prove it to that extent, then their Aboriginal title is declared, and that trumps any existing titles, these simple titles. How many bands of First Nations or how many are there in BC? It's a little over 200. Okay. So in theory, 200 bands are going to

come forward saying citing they have what right wouldn't that be what you do except it's not past it's not perspective it's actual they have come forward there are claim there are cross claims over virtually the entirety of british columbia by indian vans for aboriginal title so if you're sitting in bc right now which you are but like i i mean you're just tuning in you're listening and you own or you think you own i don't know your house uh a small farm a farm, an orchard, everything. What is the government of BC telling you right now that you actually, you actually, there's actually like somebody who could take claim of that, correct?

Well, the BC government, this particular government, this government, NDP government is, of course, siding with the Indians 100% and are actively negotiating with all of these, I don't know, but it shouldn't see it with all of these bands, with a whole bunch of these vans. They're secrets. No one really knows. But every once in a while, it's revealed that some secret agreement has been signed where they've, in fact, ceded Aboriginal, conceded Aboriginal title to a various Indian

van to a substantial area of British Columbia. Now, let me add this, just so to put it in perspective. I mean, when I say the Indian vans have crossed claims to virtually the whole province, that's true. But then it comes to the proof. Before the Richmond case that was decided a month ago, earlier this month, there was three prior cases that had gone to court. And in every case, the court found that the ban was able to prove

only a relatively small part of the area for which they were claiming Aboriginal title. So they would go in and be claiming, let's say, you know, several thousand square miles, and they would end up with maybe a few hundred square miles. Because on the evidence that they had do, even this seventh generation hearsay evidence, and anything else they could come up with, the judge ultimately has to find, on the basis of the evidence, whether they've proven exclusive occupation of particular ground back in 1846. That's the test, and the onus of proof is on them to prove that.

And in a lot of cases, they're just not able to back up their full claims, but they end up succeeding to a fraction of their claims. So the future of British Columbia in terms of how much the Indians will own depend on the outcome of either negotiations, treaty negotiations, which are underway between the government and the Indian bands in secret. And if that doesn't resolve all of the claims, future court cases, which will determine how much of the actual land is owned by Indian bands. They're challenging this, yes?

Pardon me? They're challenging this ruling? Well, the BC government defended the case. Canada was sued. BC was sued and Richmond was sued. And Musco had got themselves involved. So there was, all of them were opposing this claim. And the Attorney General of British Columbia announced right after the decision came down

and when it appeared that it was going to be very controversial, has announced the intention to appeal. And this is such an important case. It's got a very good prospect of going all the way to the Supreme Court of Canada for final resolution. Is there anything on your side? Once again, I'm leaning on your 50 years of practicing law, that as it's appealed, that they will throw out this claim? Or, I mean, it's hard to know what the court.

Well, the law that's developed in respect to these claims showing is so complex. I mean, this judgment was a thousand pages. And an awful lot of it is discussing law as it's applicable to various aspects. So it's really impossible to get your head around the whole thing. But is there an ultimate chance that the Supreme Court will reverse this claim and reject the claimer average total title? Yes, I think there is. I think there's some decent arguments that can be made. But the judge in this case was painstaking in going over every potential argument at every case

and putting together a formidable set of case law that in support of her decision and her findings of fact as to where they occupy. So who knows? When you say there's some good arguments to be made, what are some good arguments against this? Well, one are, I mean, some of the arguable have already been decided, but the Supreme Court account at it is free to change its mind. and overrule previous decisions. So it could, theoretically, it could decide it was wrong in Delmogook

and say Aboriginal title no longer is available. I think that's remote because they repeated that mantra over and over again. They could even revisit their decision on admitting seventh generation hearsay, but that's unlikely too. But there's other defenses such as extinguishment. Now, I've seen an article by someone I would consider an expert who said he thought that was a very decent argument that the province extinguished any Aboriginal title when they started issuing fee civil titles. And the judge, the trial judge in this case, you know, spent enormous amounts

of reasoning to deal with that argument and found against it. But that that's a That will no doubt be appealed. And the Supreme Court of Canada is free to do whatever they want. They're not bound by any precedent, including their own precedents. If this is upheld, what is it, where does the point the future of BC towards? Well, it's pretty dismal. I mean, if I was advising people, businesses thinking of coming here or people thinking of moving here, I would advise them to think twice.

How would you like to be one of those people owning a title, paying a million bucks to buy house in Richmond and find that your title is now trumped by Aboriginal title? That's a potential that can exist anywhere in the province. It certainly exists with respect to businesses, land-based businesses that are out on ground land. I mean, they're all subject to these claims. They could all be wiped out.

And businesses are going to be very clear on this. I mean, the people who put up the money to make the investments are going to be very clear on this. Now, some of them are negotiating on the basis that they have to get Indian consent to what they're doing. And together with the government, they could enter into a sort of treaty agreement whereby the Indians either are recognized as owning title but are consenting to these arrangements that the various companies could enter into, or might, knowledge they don't own title and are paid some acceptable enormous sum of money to to waive their title. So, but that's, that is front and center, I would think of any, any business that was thinking of coming here or expanding here.

So worst case scenario, you buy a spot and we'll use Richmond and they just supersede your title and you lose everything and then you go sue the government. Best case scenario, well, I suppose of them throwing it out, but let's say they don't throw out the best case scenario on that is it like becomes a another tax on owning the land you have to pay a fee to the band that has a title like am i even saying that right yeah well sort of because it's not clear this is how the judge left it in her decision remember what i said earlier is that the band did not sue individual owners property owners they didn't sue businesses they didn't sue people but own titles they sued only the government um

They obtained a declaration of title that applies to that three square miles. It definitely applies to all the people that own titles. But there's no direct judgment against the title holders. The judge dealt with this by saying Aboriginal, if Bush comes to sub, Aboriginal title trumps. But for the moment, fee simple titles exist and they're still valid, although subject to Aboriginal title. And I'm turning the whole thing back over to the provincial government to negotiate with the Cowichin band to, and in the interest of reconciliation to come up with a solution. Who knows how that's going to work?

Sorry. But the next step is if there wasn't a negotiation, if there is not a negotiated solution, and the Indians, the Cowichin Indian man wants those titles, all they've got to do is, is take the step of asking for a court to declare the title's invalid, and they'd undoubtedly succeed on the basis of this judgment as it now stands. This is a lot of mental hurdles to jump through. It's a lot of mental hurdles, but the bottom line is, it's horrific. Yeah, well, I mean, so I'm just trying to, like, wrap my brain around this.

And I guess that's what a lot of Canadian, that's why people were, you've got to do something on this shot. You got to have somebody on to talk about this. So I'm like, okay, and here's Barry, and you're doing an excellent job of laying it out. I'm just like, I don't know, you know, like, not even the best case scenario is if this stands, then you understand, then I understand, and you've already said they've already issued challenges. So 200 bands are issuing challenges all over BC, which means now all of BC could be subject to the same thing. So it doesn't matter where you sit.

You could be on a band's land that they superiors. proceed your title. Meaning, if they ever go to the court saying, we just want them off, they could essentially evict you. Well, if they, if they proved that they had exclusive occupation of the ground in 1846, yes. I mean, it's not an easy thing to prove, Sean, for them to discharge the illness to prove. This case, what went to trials, the longest trial in Canadian history was five years. And, I mean, the judgment's a thousand pages.

I mean, the amount of evidence is necessary to put forward. I mean, here's another unique aspect of this particular case. One of the big issues was whether the plaintiffs, which were five bands, not called collagen, but different names today, could even trace themselves back to the 11 bands of collagen that allegedly, well, that did exist, the judge found back in 1846, one of whom came to Richmond each summer and fished and had some structures there that they used for the summertime. So there's an enormous body of evidence, and the defendants contested, that the plaintiffs could even trace themselves back to the cow-weigh.

that were there in 1846. And that involved endless analysis of historical fact and relationships. And I mean, they didn't have organized, they didn't have written language, they didn't have documents. They just lived in these reserves and mainly a nomadic existence going from place to place. And so how could a modern ban prove a linkage back to the people that were there at 1840? That's a big issue in every case and was in this case. But it still sets the precedent for every band out there to begin establishing that they had exclusive occupation over different areas of BC. Well, the precedent was Delmogne.

Right. When Delmogne came down, I said this is a potential disaster for British Columbia. And people weren't listening that, but they're sure listening now. Well, it's 30 years past then. And now you get the longest trial, five years, and you go, so where do the next 30 years take us? More of this, especially if it's up health. Unless there's treaty sign. You've got, you've got, you've got, if the Indians press these cases, there's only two possible resolutions.

One is let the courts do it, has happened in this case. The other is to sign a treaty settlement with them. Now, you've made, you talk about BC, but then you made a reference, I can't remember if it was in the phone call or on here, that it's different for Alberta, Saskatchewan and elsewhere. Why is Alberta, Saskatchewan in particular? Because I sit in Alberta, different than what's gone on in BC. They signed treaties. John McDonald signed treaties with all the Indian bands in the West. and even before his time there was treaties signed, before Canada existed, there was treaties signed

with several Indian bans in Ontario. So all of Ontario, Saskatchewan, Manitoba, and Alberta are seated by the Indians to the governments and the claim for Aboriginal title cannot be made. So this is a specific problem to BC? Correct. And New Brunswick. As I mentioned, there's a case. there where the Indians are claiming over half the province is Aboriginal title. It's actively in

trial right now. So if you're sitting in Alberta, there's no way you can use this case, these set of cases going back to 1995 to do the same thing here in Alberta. That's right. Not with respect to Aboriginal title. There's no possible claim they can make. They can make claims to Aboriginal rights, which is not title, fishing rights, hunting rights, blah, blah, blah, but your titles are secure in Alberta. You made, one of the things I think everybody has noticed. I mean, the Hamilton honors just went to the Stanley Cup playoffs. Every game, they have a land acknowledgement.

You mentioned land acknowledgments, and forgive me, I don't know the words you use, but you had a word I wrote down preposterous, but I don't know if that was the right one. Well, it is. It is preposterous. I mean, for anybody in Ontario, at all events, even in Ontario, and I'm sure in Alberta, everybody starts out by acknowledging that they're allowed to operate on the unseated lands of such and such band. And that's just preposterous because all those lands were seated in treaties that are 100% valid and binding. So it's... I guess it's just so commonplace.

Everybody just does it. You just go to things. Exactly. And they should stop doing it. I mean, it's going to lead to title claims just because you keep acknowledging that the lands are unseated. But the law would reject that, correct? I would certainly hope so. I don't know how the Indians could ever get around the treaties that were signed.

where they plainly seated the entire area of Western Canada and Ontario to the governments of the time. On behalf of Canadians today. Oh, man. I'm sorry. I'm like, I just don't even, my brain is trying to wrap my head around what's happening. Because I just imagine, you know, you get a farm or, you know, like I got friends in, in BC that have orchards and different things like that. right beautiful spots and they've paid money they had the title on and on and then this walks in it just um it's going to shake the foundation of british columbia right of of of a business and

private property and all the different things because basically when this goes through if it does it's just going to open up who knows decades long more trials more money going to going to try and figure out what land is what who's right and it's going to just take away everything that's going on right now if you can prove back to 1846 yeah and there's there's 200 bands over 200 bands they're all making these claims the claims are duplicative i mean in this case muskwam opposed the kovachin claim because they uh for example so they're fighting with each other um if these cases go to court there's all these parties involved Canada BC municipalities potentially as it was in this case more than one band that's cross-claiming against each other the costs are through the

roof what I would like to know is how much of those costs are being how much of the Indians legal fees are being borne by taxpayers and I can't get that information I'm told I asked a knowledgeable source he says you could ask for you could ask for it under freedom of information when you get declined and they'd be able to continue to decline to let you know that. Now, I haven't tested it yet. But there's very few Indian bands that would likely be able to afford to bring one of these cases. I mean, the number of lawyers involved in this Richmond case, there's about 50 lawyers and about a dozen for the band.

And you can imagine the legal fees that would run up, and it'd be in the tens of millions. The band alone would have incurred tens of millions of legal fees. in proving this case. They have experts to pay. I mean, lawyers can act on contingencies, but I don't know how many lawyers would enter into a contingency fee agreement on a case like this where they have to work for five years and maybe through appeals and other five years without being funded. I mean, how could they possibly? You know, you could put food on your table. And so someone is paying these people, and I think it's us taxpayers. And that's wrong. I mean, we shouldn't be enabling them.

to take our, to take our, our, our birth rights away from us. That also is a thought, because what you're saying there is essentially, the taxpayers are funding their own demise of their property. I think that's right. And I'd love to be able to prove it. Because I'm sure that's where the money's coming from. No one's raised this. This is by speculation, but I think it's pretty sound speculation.

There's been a whole bunch of other things going. And you mentioned this in your email today about Camloops. And forgive me, you told me how to say it, but I'm going to butcher it anyways. The Shelt ban claim. And you're, you can see Shelt. It's a city in Vancouver Island, C Shilt. C Shelt. Yeah.

And this is about all the graves, the murdered kids, on and on and on. And yet, there's been. nobody's found as far as I understand on these anomalies and everything else. How much those things, there's no way those things don't create the circumstances that make it almost political suicide to even talk out against what's happening. Correct. You're absolutely right. And that's why no politicians do.

The only politician that's hatched, there's only two politicians that I know of. that have ever taken a stand that bodies don't exist or haven't been proven to exist. And they were both members of the BC Conservative Party that almost won the last election, but not quite. Dallas Brody and Tara Armstrong and Rustad threw Brody out of the party for even questioning whether there were 250 bodies found in the apple archer near Camloops residential school and now Tara Armstrong has torn into the claim that's been advanced from the seashell Indian band that they've discovered 81 bodies let let's just take a minute and and deal with what happened in 2021 that it's pretty

torn our country apart the the chief of the Camelowloos Indian man, Chief Casimir, announced that they had discovered the graves of 200, they had discovered 215 bodies. And a month later, she went to the Assembly of Indian Chiefs and moved a resolution that this was a genocide, that it was a mass grave, and that Canada should be indicted before the International Criminal Court for genocide. That's how serious it was. What evidence did she have to support that? The only evidence she had was a ground radar survey done by a junior archaeologist by the name is Sarah Ballou. Now, ground radar surveys, as any archaeologists will say, can only show that there's an anomaly there, soil disturbance. They have no idea

whether it's a grave or a ditch that had been done. So the existence of disturbances themselves don't prove anything. But this announcement was made that they discovered 215 bodies. What's often forgot is that within a week of that announcement, it was shown that Ballou had not been made aware of works that had been done in the area, just a few years before that explains 15 of the bodies. She quickly amended her claim that there were two on her bodies. Then when asked how she could support the notion that these were bodies,

she said, well, it can only be proven if there's excavations, but I believe they are bodies because the knowledge keepers told me so. So this is a trained archaeologist making a statement like that, and that thing has gone viral. And Angus Reed just did a survey where a third of Canadians still believe that there's bodies at that site. When this claim was made, no one raised the question of why a religious order consisting of priests and nuns would be murdering children. I mean, no one raised that question. These people were interested in saving souls, not murdering children. The other question no one asked is why in the entire history of the operation of that school,

that residential school at Camdenham's, had no parent ever come forward and claimed that their child had gone missing. How could 250 children go missing, though with any parent making a claim? Trudeau believed the claim nonetheless and took a knee and flew the flag at half mass for months and Canadians jumped all over and accepted it in masses. I thought it was preposter's claim then, and I think everything that's come forward sense is showing that there are no bodies there. There's a book called Grave-Air, you might have heard of it. It's a collection of essays from people who have researched this particular.

claim at length, they come forward with convincing evidence of septic tank works that were done in the 1920s in the very place where there's alleged to be bodies. It would be full explanations for the anonelies. So I'm persuaded, you know, I've lived my life, try to prove cases in court and weigh evidence. And to me, the evidence is overwhelming as it stands at the moment, that there are no bodies there. But the one way to prove it would be to do excavations and find out if any of these anomalies actually constitute a body. The Camel Ban received $12 million from Ottawa to do precisely that.

They spent the money. They spent it on, who know, the healing center. We know they built themselves a healing center. They probably pay themselves a lot of fees to sit on committees and talk about what they're going to do. But they haven't. invested a hundred bucks to hire a man with a shovel to go and dig up in a normal and and that's where that's where we stand today on that player you know the um uh i guess i just you know with the catholic church and saving souls while i uh for the most part agree with you i just had on ben trudo who you know comes from quebec and lives in lives in alberta and he was telling me about the Catholic Church there.

And they're called, and I just wanted to make sure I get it right. I'll say this name wrong. The duplicies orphans. Essentially, children that were born to unmarried women were falsely labeled as mentally ill to secure higher federal money. So it was for money. So instead of being put in an orphanage, they'd be put in a psychiatric ward. And so, like, there's stories across Canada.

this history with whether it's the church or anyone else where like awful things were done in children and so I can see like a I can see some some when you read the history of the Indian residential schools where some bad things had gone on but when we talk about the 215 on Mark graves camlub specifically as a lawyer right or as a as a journalist on this side you just got to look at the evidence it's like well just what evidence is it right like i can i can go well this is what the catholic church stands for but then we know there's a ton of things that the catholic church and other religious bodies have done that have not been great in the human history i agree with that but i don't know of any instance where the catholic church

has ever been accused of systemic murder of children over an extended period of time i mean that's just that's just be on the pale the other the other a couple of other facts that are relevant is these these this Camlood school, residential school, the staff was largely indigenous. Could you hide? The fact that there was systematic murder going on from the staff that populated the place. Also, Canada kept rigorous statistics on all the children who attended residential schools because they paid out, they incurred the entire bill, and it was paid out on a basis of a stipend per capita. So they wanted an exact record of any child

that was in attendance at any time. There's a lady by the name of Nina Green, who's the best researcher I've ever come across. Every time it's alleged that a child went missing, she goes and finds the birth, the death certificate and proves the child was never missing. And to this date, there hasn't meant any proof of a single child that has ever been proven to have gone missing.

well and so that's where when it comes to the evidence right so when we talk about what evidence is there i think it just is it's it's almost baffling how they make this claim and then they have no evidence to prove it right it's like where we have anomalies that's right a hundred percent of their case and knowledge keepers well you hear these preposterous stories from some of the knowledge I mean, the child was seven and he was roasted out of bed and helped dig a grave. And another one was witnessed a priest throwing a child out of a window. I mean, claims like this should not be given any credence without being rigorously tested. And they won't allow excavations.

I mean, why not? If you really think there's bodies there, let's prove it. Yes. Well, and I agree with that. I just, it's one of these, what's the word, you know, one of these topics that is very difficult in society to talk about because it's, it's like you don't talk about it, right? And I always point, I just had on Tammy Nemeth and we were talking about green energy, right? Wind, solar, all these things. And just by being pro. like green technology, you still got to look at like, is the, like, what about, like, does it provide enough energy? What are the downsides? What are the tradeoffs of said things? But when you're, nope, we're all in on green energy. We don't look at all the others. This is one of them, right? The green climate agenda is one thing where one thing is put out and you don't get to talk about it. And when it comes to residential schools, it is just a foregone conclusion.

that they were horrendous, which they were in large parts. But now the claim being made that there's unmarked graves everywhere across Canada, and they're found by this radar. And that because of that, like, they were all basically killing children everywhere. There's no evidence to show that. But when you look at the evidence, nobody wants to hear that, which is odd to me because that's what journalists are supposed to do. In the court of law, you're supposed to have the evidence, right?

And the evidence is, I think, supposed to be, you know, so irrefutable that you're just like, no, it happened. And everywhere I go with this conversation in particular, it just seems like there's no evidence. And there's Nina Green. I read the article you sent me. I'm like, sounds like I got to have another person on because she does a crazy amount of work on the recent claim. On Seashow. Yes. Yes.

She's thoroughly debunked. I mean, there's no basis upon which that claim can survive. Naina's research, which is all contained that article, I sent you. Except for it's on a topic where it's a foregone conclusion that it's right before there's any debate on the claim. You make the claim and it just runs. Yeah, E.B. lowered the flag in front of the legislative building at BC to half-mask when that claim was made, just exactly what Trudeau. did with respect to the camel's claim four years ago.

Yeah, well, we see it out of government all the time. I feel like, Barry, like, you know, I mean, they led in a Nazi to the parliament without like vetting it. And you're like, we can't be that dumb. Are we that dumb? And then you just see things happen over and over again where you think the court of law, journalism, all these different things that are supposed to investigate and make sure the evidence is substantial.

right were the residential schools yes were there some things that went on in those that weren't great yes but were there 215 kids murder well you're already telling me in the first week they had to reduce that to 200 because 15 well wait a second right like that that does that so then you go okay if we already knocked off 15 what about the rest of the 200 maybe we should do some digging to make sure there was maybe it was two maybe maybe it was one maybe maybe it was 10 maybe it was none But it ran and then we everything. It just, that is fascinating in a dark sense of the word, I suppose, because I watch it play out in so many different ways in the political realm.

Or the, just in culture, right? You bring this up. I already can feel it myself. I'm like, oh, man, this topic is, why am I so uneasy to talk about it? Well, because that's what society pushes on us. At one point, it was COVID. When we were in the middle of COVID to talk about anything that wasn't, protect everyone, just stay at home, lock everybody out.

It was a very uncomfortable thing. And I can feel that with this topic every time I bring it up, except then I go, but okay, well, then just bring up the evidence. Let's just see all the evidence. Just show me here's the bodies. We went and did it. And yeah, there's like a mass grave and it's pretty bad. Except that isn't the case.

And the further we get away from the Camloops one in particular, it just becomes more evident as the days go by. Well, here's the big picture shot. When the Camelow's claim was made, Trudeau announced that there would be unlimited funding provided to any Indian vans who wanted to search for bodies. And so far, I think the number is 270 million in total, 12 million of which went to Camelux. But $270 million funded by our tax dollars from Ottawa have gone to assist Indians in looking for bodies. Now let's distinguish between bodies in the cemetery.

I mean, there was cemeteries near these Indian residential schools. Children were buried in those cemeteries. There would have been wooden headstones that may well have not been kept up over the years. I mean, in most cases, it was the Indians that were in charge of maintaining the gravesites. And it could well be. There's a lot of unmarked graves in that sense. but when we go to talk about murdered children, Barry, not in a cemetery,

but in the Kamloops case, out in an apple orchard, entirely apart from the existing cemetery. That's a whole new level of wickedness that, as I say, they haven't yet established a single child that's unexplained, has ever gone missing. I don't know if, Barry, you tell me,

like we've covered a gamut here, in an hour. Is there other things going on in BC that we haven't covered or you want to make sure people know about? Well, there's so much going on. I spend a good part of my week sending out stuff. These are the, I'm just so occupied at the moment with this, the topics you asked me to look into the new land claim and the uh the children claim that i haven't got anything at the top of my head john well i appreciate you coming on and doing this i know like when we go back to the the the the land claim sorry let me just add one that just i sure i said out this week so this is on a scale of things you know much less significance except it like it may be pretty costly the

The Canada allowed Indians enfranchisement. Enfranchisement was the act of an Indian voluntarily leaving the reservation and he would be entitled to take with him a share of the property. And then he would no longer have any rights as a status Indian. He wouldn't be registered in it anymore, but he would have the full rights of a Canadian, including the rights. to vote. Back in those days, the Indians had the right to vote. I'm talking about in the 19th century. And the downside was that once he accepted enfranchisement, he no longer was a registered Indian,

nor would his heirs be registered Indians, nor his wife. And that's gone on for 170 years. they've started an action which Canada has conceded to, amazingly enough, in which they claim that enfranchisement, which was a voluntary exercise on the part of an Indian, what is a breach of the Indian's charter rights to, in Section 15, to be free from discrimination in the rounds of race. So Canada has filed a defense to that case admitting that Section 15 applies, admitting that franchisement in effect is discrimination on the grounds of race because the errors of the Indians who accepted enfranchisement or excluded from the rights that were accorded to other Indians living on the reserve. and they've started a class action for monumental damages against Canada for all the benefits that they've lost because they weren't entitled to the rights of a registered in during all this time. I mean, there's about 50 these class actions going on.

That one's on the tip of my tongue because I just wrote about it this week. So we're in for a big number there because Canada has already conceded that what happened was a breach of their charter rights to be free from discrimination. I, as a lawyer, cannot understand how this can be categorized as discriminatory based on race when it's exact opposite. It was a right granted to Indians which they accept it voluntarily, and I can't see how that creates a cause of action. But I have no doubt that the government accountable settle it and bail out big bucks like they do in all these cases. Judy Raynold Wilson, when she was Attorney General, instituted a policy in 2019, that none of these class actions were to be litigated. None of them were to be opposed. They were to be settled.

And since then, they have been settled, even the ones that were clearly defensible. And they've been settled for amounts that wouldn't have been able, the Indians wouldn't be able to prove that they'd gone to court. We've paid out hundreds of billions of dollars on stuff. like this over the last several years. Did you say Judy Wilson Raybold instructed the government not to fight any of the claims? She was the government. She was the Attorney General Minister of Justice. Yes. She set the policy that these claims are not to be defended. You are not to raise defenses. They are to be settled. British Columbia has the same policy adopted by Eby.

There's going to be some that are like, slam dunk cases that are like, yep, there you go. Yeah, that was, yeah, we needed to award them. They had, they had rightful claim. But doesn't that open the door for anyone to make a claim and realize that nobody's going to, like, put up a defense against it? Oh, of course. You've got, I mean, undertaking class actions is a big deal because you're not. devote years of potential legal work and you don't get me pay unless you win or get a good

settlement. But now, the major firms in Toronto are undertaking these cases because they don't have to do much work. They start the action and under Trudeau, they were settled. We paid out over and over again. Tom Flanagan, who's an expert on this, has written articles about how much has been paid out on some of these crazy claims. Here's another one that really gets my blood. going, the Indians brought a claim against Canada on the ground that Canada had not spent enough money on Indian child welfare. Now, the fact is, of course, we spend billions specifically on Indian welfare every year. It went from, I think it was 11 million, 11 billion a year in 2015, when Trudeau took over

to something like it's tripled in his tenure. But the Indians argued that we hadn't specifically earmarked enough of that money specifically for child welfare compared to the resources that were available to Canada to spend. I mean, it sounds like an impossible claim, and it is an impossible claim in law because the courts have never recognized

a cause of action based on an allegation that government didn't spend enough on a particular project. They can't ever be sued for that. So they went to the Canadian Human Rights Tribunal, who invented a right, a right to have a portion, a larger portion of Canada's budget spent on Indian welfare than had been being spent, found that right had been breached,

and rounded the number up to 40 billion. That's what it be, billion, more than is spent on healthcare in Canada a year. $40 billion was awarded, to Indians because Canada hadn't spent it up on Indian child welfare. That's, that's, that's, that's, that's, that's, that's, that's, that's, that's, that's, that's, that's, that's, that's, that's, that's, it's, it sounds too, it sounds too fantastic to be real, but it is real. Boy, I just think 40 billion. Like, where does the money go? Well, now you really raised a good question. Under Harper, there was a piece of legislation called the financial,

Transparency Act. It's still there on the books. And it required Indian bans who received money from Canada, and they all received money from Canada, directly year by year for their budgets, but also any class action settlements or treaty settlements, the funds are almost always, some gets out to individuals, but a lot of it goes to the band, under the control of the band leaders. Harper required the banned leaders to file financial statements every year. This is routine. Everybody has to file financial statements. Sean, I got a private company, you know, through which I practice law, that has assets.

My children and life are non-voting shareholders, and they're not even equity shareholders. I have to file under the company legislation an audited financial statement every year unless they weigh it, which of course they do. But that's what I'm saying. It's just routine that everybody has to be accountable. And Trudea got in and suspended that obligation. He said it was, quote, disrespectful, unquote, to expect Indian man's to false statements. So you ask the question, giving a long-winded answer to your question, where's the money going? Do we know what's happening to it? The answer's no because of that.

They don't file statements anymore. And the suspicion is that a huge amount of the resources that Canada is sending to Indian men are locked away by the leaders. And that's why the Indians living on the reserves are often living in very poor conditions because it doesn't get down to them. Do you think 40 billion year over year? Well, 40 billion was a one-time award. Or was a one-time award? It wasn't one-time award in respect of it was an accumulation of, all the years over which Canada was allegedly deficient in funding Indian child welfare.

I was just wondering, if you're searching this, because I'm kind of curious. 600 recognized First Nation governments are bans in Canada. Yes, 634. So what does 40 billion across 634 give you? I don't know. It would be presumably allocated according to the number. of children in any given reservation at any given time over the years of the claim. So the accounting would be significant, but it's not an insignificant sum for the government.

40 billion divided by 634 is approximately $63 million to each tribe or each band. Yeah, and some of these only up a few hundred people. Well, I guess all I'm drawing it to is I'm like, if you got given $63 million, dollars what could you i guess money doesn't go near as far as it used to but i'm like at the same time it's 63 million dollars right like i would think that would you'd be but maybe i'm wrong i don't know you know wrong where is it going that is a hundred that's a 64 dollar question and i've ranted raved about that for a long time but carney's come in he hasn't changed that they're still immune from the obligation to file financial statements well barry i appreciate it you know like when it comes

When I go back to the start of this conversation, talking about Coachin and the trial and land rates, I don't know if I got my head wrapped around it, to be honest. I'm like, I think I do. It's just confusing because you buy something. I can just, if I'm sitting in BC, I went out and bought a trunk of land. And then to know that in the future, there is more and more possibility that I'll either on the least, extent, which, you know, I don't think anybody wants their tax to go up, but you'll just pay more money out and that'll go to whoever actually they'll own the land to you. Like, it's, it's just

confusing to me. And I probably need to write it out or draw it out so I can fully understand that. That's, that's on like, that's the worst it gets. The best, like, or not the worst it gets, the best it gets, sorry. The worst it gets is like they just, one day, no, we want the land back. And that would cause pandemonium. I would. think in BC? Well, this judge has left it to the government of British Columbia to work it out with the college in how these fee simple title interests of individuals and businesses is going to work in the face of a declaration of Aboriginal title over their land.

And she hasn't, you know, she's left. Yeah, so then I'll put it to you this way. Do you feel confident in Eby in his government that they're going to get this right? And, and, you know, and BC citizens, you know, aren't going to, are going to come out on the, on the good side of this, I guess, right? Like, you know, when you look at it. It's a lose, lose proposition. If the government decides to compensate all of these landowners, buy up their, basically buy up their

titles at current value and the businesses that are all these three square miles, that's going to cost a fortune. It's going to come out of the BC taxpayer. pockets. Yeah. So it's either through the government we lose or the individual title holders lose, but certainly the Indians are the winners and the only winners. Thanks for doing this, Barry. I appreciate it. Lots to think about and appreciate you hopping on and doing this. Thanks very much.